400 convictions falsely based: ‘catastrophic failure’ of legal system

Thank you for your letter of 19 February 2019 in which you state: “While Dr Manock’s conduct has been subject to criticism, I do not consider that those criticisms go so far as to render his work wholly unreliable.”

In view of the amount of research and scholarship that Dr Bob Moles has completed (and authored books about) in this matter over many years, I have asked that he co-author this response to your letter. We profoundly disagree with that view and regard it as unsustainable; we suggest Dr Manock’s body of work as a whole has indeed been shown to be ‘wholly unreliable’ – by no less authorities than the South Australian judiciary and medical profession – collectively.

Your letter cites a brief passage in Van Beelen v R (2016) which appears to provide some support for the expressed view. However, this view is fundamentally misconceived and the source which is cited has no relevance whatever to the issue of Dr Manock’s competence or qualifications. The Court of Appeal and the High Court in Van Beelen both made it clear that they were not in a position to address that issue.

We ask whether, in forming the view you have expressed, you (or your advisers) took into account the factors outlined below. A summary of them may be found in the Parliamentary Submission on 3 September 2018, from Associate Professor Bibi Sangha and Dr Moles (Adjunct Principal Researcher) both of Flinders University (page references are to the submission which also includes citation of primary sources):

* In the appeal judgment overturning the conviction of Mr Keogh, the Court of Appeal said that Dr Manock had ‘materially misled’ the prosecution, the defence, the trial judge and the jury. His hypothesis with regard to murder was ‘no more than speculation’ and his sampling of tissues was ‘wholly inadequate’ (at p 8). All of the experts who provided assistance to the court on this appeal were agreed that Dr Manock’s work was ‘fundamentally flawed’.

It is clear that Dr Manock had interpreted an accidental death as a murder; that at the time he expressed those opinions at Mr Keogh’s trial he knew that they were without scientific support; that even after he admitted to the Medical Board in 2004 that his opinions had changed or were unfounded, he took no steps to ensure that Mr Keogh’s conviction was reviewed. This amounts to a calamitous series of failures which cost Mr Keogh and his family 20 years of his life, and the state well over $10m in compensation when added to the costs of incarcerating Mr Keogh and the legal costs in defending the indefensible work of Dr Manock over the years.

* In applying for three jobs at the IMVS (Institute of Medical and Veterinary Science SA, now SA Pathology – ed.) over a number of years, Dr Manock made statements concerning his prior experience in Leeds which were false and misleading. The number of autopsies which he said he had completed there went from 1,200 in his first application to 1,400 in his second application and to 1,800 in his third application (at p 14). Clearly, at least two of those statements he must have known to be false.

* In 1978 Dr Manock engaged in disgraceful and clearly unlawful conduct by desecrating the body of a deceased Aboriginal man in the main street of Mintabie whilst joking about it (at p 17).

* In 1981 the High Court of Australia, in the case of Mrs Emily Perry, said that Dr Manock’s evidence represented an ‘appalling departure’ from acceptable standards of forensic science. It was said that the prosecution should use people who are ‘substantially’ and not just ‘nominally’ experts in their field (at p 17).

* In 1995 the Coroner of South Australia issued a report in relation to three baby deaths in which he stated that Dr Manock’s autopsy reports achieved ‘the opposite of their intended purpose’. He made it clear in his report that he had formed the view that Dr Manock had been incompetent in his work and dishonest in answering questions in the Coronial Inquiry. It is clear that Dr Manock’s reports had prevented the police from continuing with their inquiries and laying possible murder or assault charges (at p 18). Nothing has since been done to rectify the effects of this appalling misconduct.

* In 2004 the members of the Medical Board of South Australia provided written opinions in which they stated that Dr Manock’s work had been incompetent, even when judged by the lowest of standards, and that he had failed to comply with standards which had been laid down in 1908 (at p 20).

* In 2017 the High Court in Van Beelen v The Queen accepted that Dr Manock’s evidence as to the time of death was ‘without scientific support’. In the grant of special leave on this application, the High Court specifically refused to be drawn into the issue of Dr Manock’s ‘qualifications’ as the evidential basis for it had not been laid before the Court of Appeal. This would mean that the extract you cited in your letter was irrelevant on this issue.

Dr Manock stated in numerous criminal trials that he was a ‘Fellow’ of the College of Pathology of Australasia. On each occasion he did so, he misled the court by implying that this amounted to a ‘qualification’ related to his expertise. That was false. He was simply given the certificate without studying or undertaking any examinations (at p 15). He was aided and abetted in this disgraceful conduct by those who employed him at the IMVS (the forensic science centre) and by the prosecutors who used him to secure convictions. It is clear that Dr Manock, his employers and the prosecutors were in breach of their duties to inform the courts and the defence of the true state of affairs.

Clearly there are similarities here with the Victorian situation concerning ‘lawyer X’. Both situations have brought into question around 400 criminal convictions. The High Court described the underlying conduct there as ‘reprehensible’, as involving ‘atrocious breaches’ of the sworn duties of those involved, and that ‘the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system’. It is clear that the same can and will be said about the work of Dr Manock and those who assisted him in this gross perversion of the rule of law in South Australia. At least in Victoria, they have immediately appointed a Royal Commission to help resolve the situation, and it is our respectful submission that the same should now be done in South Australia concerning Dr Manock.

In the civil litigation involving Dr Manock in the mid-1970s, the Head of the IMVS (a govt instrumentality) stated that Dr Manock had ‘no higher or specialist qualification’ (this being several years after he was given his Fellowship certificate) and ‘he was unable to do the certifying of cause of death’ (at p 16). This meant that he was never competent to complete a forensic autopsy on his own or to appear as an expert witness in legal proceedings, and he was never a competent witness as to cause of death.

Dr Manock claimed to have helped secure over 400 criminal convictions. His evidence in each of those cases should have been held to be inadmissible, because he was not a properly qualified expert. In most cases, that would be sufficient for a successful application for an appeal to be granted.

Dr Manock also undertook 10,000 autopsies after his employer told the Supreme Court he was not qualified to certify cause of death. It is important to note that the evidence given by the State of South Australia’s most senior expert to this effect in the mid-1970s, was also given in a case to which the State of South Australia was joined as a party to the action. As Attorney-General and Chief Law Officer, you must act consistently with that sworn evidence given to the Supreme Court. It is clear that Dr Manock never subsequently undertook any actions to alter his status in this regard at (p 23).

At pages 23-26 of the Parliamentary Submission a number of cases are mentioned in which highly credentialled experts have made it clear that Dr Manock’s evidence in each of those cases was wrong and cannot be substantiated. For example:

* Mr Akritidis could not have died 2.5 hours after his dead body was found by the police. He could not have head-butted a hole through a thick and heavily reinforced concrete roof – and remained free of injuries (at p 25).

* In the case of Gerald Warren, it was simply false to state that corduroy and metal pipes inflict injuries indistinguishable from each other. Falling out of a moving vehicle does not involve the same physical forces as having a vehicle driven backwards and forwards over one’s body (at p 26).

* In the case of Mr Marshall, it is inconceivable that an experienced forensic pathologist could attend at a murder scene and fail to notice that the deceased has been shot in the head (at p 25). As in the baby death cases, Dr Manock had concealed the circumstances relating to a homicide which ensured that the relevant perpetrators were not made accountable.

At pages 26-3- of the Parliamentary Submission the relevant legal principles have been set out. These principles make it clear that the prosecution has a duty ‘to the court’ to disclose any deficiencies in the Crown’s case and that duty is continuing, even after the trials and appeals have been concluded. They have an obligation to act upon that duty even in respect of cases which are not currently before the courts. As in the case of Lawyer X in Victoria, where the prosecution has identified a defect in circumstances which have led to a conviction, they have commenced to fulfil their duty to notify those concerned. The same must now be done in South Australia.

At pages 33-34 of the Parliamentary Submission, the issue of fraud and criminal penalties for the securing of wrongful convictions by the provision of false information is discussed. The cases have referred to such conduct as an ‘unspeakable outrage’ and as constituting ‘an extremely grave criminal offence’. You would be aware that the Lord Chief Justice of the UK stated in his Sydney lecture that the wrongful conviction of an innocent person would represent a ‘catastrophic failure’ of the legal system.

Cleary such catastrophic failures have occurred in South Australia on a scale which is unprecedented in the common law world. Our research has been unable to find another comparable case in Australia, the UK or Canada. In none of those jurisdictions has a person been declared by the state to be incompetent and unqualified and then been instructed by the state to continue to undertake those tasks, and been permitted to give false and misleading evidence concerning them on such a scale.

By ignoring extensive evidence to the contrary and seeking to support Dr Manock’s position by referring to an inconsequential statement by the Court of Criminal Appeal in South Australia from a judgment which was overturned by the High Court of Australia we fear that those advising you are not acting in accordance with the rule of law or of the best interests of South Australia.

In recent years there have been over 120 television and radio programs on these issues together with books, numerous media articles and a comprehensive web site which have documented these failures. Details may be found at pp 40-43 of the Parliamentary Submission.

In addition, your parliamentary colleagues are in receipt of a written advice from Professor Derrick Pounder to their Parliamentary Inquiry into the matter concerning Mr Keogh. Professor Pounder is one of the UK’s leading forensic specialists and his expert reports were highly praised by the Court of Appeal in Mr Keogh’s appeal. Professor Pounder has advised the parliament that:

The breadth and depth of critical misinformation within the autopsy report is shocking. Some misinformation is such that it is potentially open to an allegation of deliberate misrepresentation, as opposed to simple error or error based upon incompetence

We sincerely hope that as Chief Law Officer you will not let an opinion by such an eminent expert remain unexamined. It would clearly be prudent to request further and better particulars from the Professor in an attempt to ascertain why he would hold such a view.

As we have previously mentioned, we would strongly support a formal and independent inquiry into these issues. However, if you were not minded to adopt such a course at this stage, we do strongly suggest that you obtain independent advice on these issues from a suitably qualified person from outside South Australia. The advice which you have received – which you communicated in your most recent letter – suggests a reticence in addressing the matter. That reticence, in our opinion, cannot be maintained in the longer term, in the face of such extensive and egregious wrongs.

We would of course he happy to provide any further particulars on any of these issues or to meet to discuss any of them with you or with your advisers. (Dr Moles resides in Adelaide.)

Yours sincerely,

(signed) (signed)

Andrew L. Urban Dr Bob Moles

Author, Murder by the Prosecution Adjunct Principal Researcher, College of Humanities, Arts and Social Sciences
Flinders University of South Australia

The Tasmanian AG has instantly rejected the CLA Australia Day call for an inquiry into the state’s legal system in 2020-2021. 'Nothing to see here, the system's perfect,’ she suggests. See CLA AUST DAY LETTER